A chimera that threatens the protectors of our freedoms: Judges on trial?

“As far as South Africa is concerned, the greatest challenge will be to deepen a very fragile democracy and to uphold the rule of law. The assertion of new forms of lumpen-radicalism and the colonisation of both the state and the public sphere by anti-elitist and anti-intellectual forces will severely test South Africa’s capacity to build a modern society.” — Achille Mbembe

Achille Mbembe is a professor of history and politics at the Wits Institute for Social and Economic Research. He is more a philosopher than a political scientist or historian, but his works are the profound revelations they are because he synthesises all three of these with other disciplines. (Taken from an article by Yunus Momoniat on Mbembe entitled: “The logic of cruelty“.)

Yesterday the Mail & Guardian headlined with : “Zuma backers put SA judges on trial“.

Whatever your take on the Zuma-Selebi-Nel charges and howsoever you perceive the origins of those charges, an attack on the independence of our judiciary and the men and women who serve in it is, to put it mildly, unhelpful.

While it would be difficult for me to give you a breakdown of the racial percentages found among judges, magistrates, prosecutors and other parties who carry on the day-to-day operation, to say that the system has transformed at an amazing rate is an understatement.

Parties who make allegations of racism against the judiciary or criminal justice system as their basis for not being afforded a fair trial are highly misguided for any number of reasons, including but not limited to:

The vast majority of our police force, including the senior ranks, is black. This also applies to correctional services and social workers. The whites who occupy positions are extremely careful not to do anything that may be construed as racist because of the devestating effect it would have on their careers.

Prosecutors and magistrates are (I believe) predominantly black and those who aren’t could stand as an advert for anti-racism. Even if this is just a facade, it is one that stands in favour of any black accused. No prosecutor or magistrate would dare to be racist and hope to survive in office in the new South Africa.

Our judges may make the odd mistake, but as a group are considered among the best in the world. The thought of any of them making a decision against an accused based upon racism is not only inconceivable, in the new South Africa, but ludicrous. If anything, they would be highly sensitive to everything that even remotely smacks of racism, if white, and if they were black, this would fall away (save for Nel, I would imagine).

Even as I put forward the idea of a political amnesty, I highlighted the fact that we have a wonderful judicial and criminal justice system and why should they be the pawns in this political shoot-out?

That was one of the factors I considered; another, on this point, being their distraction from the compelling fight against crime where they are desperately needed.

Whichever genius came up with the basis for Zuma not getting a fair trial because the judiciary is largely male and white has not done us any favours. It has merely created animosity without pointing out that, inter alia:

The ANC president was acquitted by Judge Willem van der Merwe in the rape trial.

If the issue of any judge’s race were to be perceived to be a problem, the judiciary could deal with that problem in selecting an appropriate judge.

Anything that even hinted at racism would be blown away on appeal.

If the backers of the ANC president are going to tackle the issue of a fair trial, which as I have said is their right, then “racism” and the “integrity of our judiciary” cannot be the way forward.

It is without merit and worse, destructive at a time when we are trying to feel our way forward. If an amnesty, which I still believe to be the best answer, is not being considered, then turning on segments of our population and infrastructure for political gain — which is what these statements amount to — is certainly not helping anyone. All it will achieve is alienating the substantial bloc of parties tarred with this brush.

We must also factor in that the ANC has now been in power for 14 years and those systems have been adjusted during its tenure in order to meet the demands of a new South Africa — the bulk of that period while all three of the accused have been actively involved in the ANC or the criminal justice system. To then claim that the systems in which they played a major role in structuring do not pass muster for themselves begs too many questions for one article.

I would merely ask whether they are considered good enough for the rest of South Africa.

The people of this country who appear before them on an almost daily basis are, in accordance with these suggestions, not being given a fair trial. As the majority of the people of South Africa support the ANC and these systems are now, in the main, in accordance with what the ANC government has implemented or allowed to be implemented, where does that leave us?

I would also point out that the judiciary and criminal justice systems will need to serve the country after these trials are concluded. If you try to destroy their credibility, how do you plan to resell them to South Africans afterwards?

Just as is the case with these systems, so too are independent media vital to South Africa.

The delegates at Polokwane were able to speak freely, ensure vote-tampering was snuffed out and resist pressure from the old guard of the ANC because of the media. This is a credit to President Mbeki who refrained from placing curbs on the press despite the attacks on him.

Polokwane reflected a truly democratic vote that was in no small measure down to the fact that the media kept the people advised of exactly what the feelings of both the pro-Mbeki and pro-Zuma factions were.

If, as is being mooted, the press did become answerable to Parliament, then the next set of delegates in 2012 might well find that the government in control then would not be as answerable to them. The government would be able to stifle a pro-Zuma type of groundswell as we witnessed at Polokwane. Only articles deemed pro-government might pass muster as sensible journalism ; hardly what the struggle for greater recognition of the grass roots has been all about.

The strength of the ANC is in its popular support — this will always be the case.

If the judiciary, criminal justice system and media are crippled, then it is those very masses who will become the problem. Their ability to redress problems and express their views having been stifled, they will seek less formal methods to get their message accross.

Accordingly, if amnesty is not the answer to these issues, then attacking the protectors of our freedoms is less so. Kindly direct your litigation and policies at ensuring that these cases are a blip on the radar screens, not the destruction of the radar and its operators — without them we are blind to the dangers that present themselves.